In the Wake of its Loss in US v. Stolt-Nielsen SA, the DOJ Antitrust Division Releases New Guidelines for its Leniency Program

In what appears to be a response to its loss in United States v. Stolt-Nielsen SA, the U.S. Department of Justice, Antitrust Division, has revised/clarified its Leniency Program guidelines. Specifically, revised Model Leniency Letters and a November 19, 2008, document titled “Frequently Asked Questions Regarding the Antitrust Division Leniency Program,” were posted to the Antitrust Division Leniency Program webpage on November 19, 2008. The FAQs seem to both change and clarify the program’s policies, while the letters mirror the language used in the FAQS.

These changes are not accompanied by a formal announcement or press release, leaving many commentators to speculate about the cause of the changes. Sue Reisinger, a reporter for Corporate Counsel, writes that “[b]oth policies were signed by Scott Hammond, deputy assistant attorney general for antitrust … [who] had promised a policy update – the first in ten years – after Justice lost its case against Stolt Transportation Group Ltd. late last year.” She points out, however, that “Hammond calls the changes ‘clarifications’ that are consistent with the division’s policies and practices. He says they were made ‘to clear up any perceived ambiguities.’”

One noteworthy portion of both the FAQs and Model Leniency Letters concerns attorney-client and work-product privileges. The FAQs state that Antitrust will not request waiver of either privilege, nor consider such waiver when assessing the completeness of a company’s disclosure and cooperation. This language echoes that of the DOJ’s recently modified Corporate Charging Guidelines, authored by Deputy Attorney General Filip, and incorporated into the US Attorney’s Manual. Thus, even if the Antitrust Division was not bound by the Corporate Charging Guidelines prior to November 19, 2008, by including this language now, the Antitrust Division puts in place a policy that could prevent the evisceration of the attorney-client and work-product privileges. This policy, if followed, would appear to mark another step forward.

While the reasons behind these changes may be unclear, the revised letters and FAQs, which can be found here, are certainly worth review. The September Issue of the Champion also includes an article, written prior to any policy changes, specifically discussing the Antitrust Division’s Corporate Leniency Policy in the context of the Stolt case. For additional commentary, consider reviewing Sue Reisinger’s article, and recent publications from Sidley Austin LLP and Jones Day.